This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

The following are my speaking notes from my testimony before the Senate on bill C-6 and terrorism citizenship stripping:

Speaking Notes

Bill C-6

Standing Senate Committee on Social Affairs, Science and Technology

Feb 16, 2017

Good morning. I’d like to express my thanks to the committee for inviting me to appear on bill C-6. In my statement, I shall focus exclusively on the issue of citizenship revocation for terrorism. These were powers enacted in 2014, and would be repealed by C-6. I support that repeal.

I will focus on two key points. First, terrorist citizenship stripping provisions are different from other rules, such as revocation for fraud. Second, they are problematic from a security perspective.

On the first point: those defending the 2014 revocation law sometimes claim that war criminals have citizenship stripped, and that the 2014 law is, therefore, no different.

This analogy is misleading. Nazi collaborators have lost citizenship -- because they lied about their conduct at the time they became Canadians. The revocation is for fraud, not war crimes. No Canadian has lost their citizenship for a war crime committed while a Canadian.

The 2014 law did something different: it used citizenship stripping as a supplemental punishment to penalize dual nationality Canadians for things done while a Canadian. In so doing, it effectively converted the many Canadians with dual citizenship into probationary Canadians.

First, there simply is no empirical basis to conclude that dual nationals pose a more serious security risk than single national Canadians.

Singling out dual nationals for the special risk of revocation is not, therefore, rationally connected to a security objective, a lethal shortcoming both from a security and constitutional perspective.

Second, Canada has worked arduously and deployed tools like no-fly lists, passport revocation, peace bonds and outright criminal prosecution to stop Canadians from traveling for the purpose of participating in terrorist activity. But the objective of citizenship stripping is, ultimately, to deport these people. If truly dangerous people are deported, the net effect may be to speed foreign fighters on their way.

Again, this raises questions of rationality.

But third, an irony of the structure of terrorism law in Canada is that citizenship revocation will not be imposed on the most dangerous of people. The manner in which terrorism offences are designed in the Criminal Code means they are most likely to be applied to plotters, not killers. Once someone becomes a killer, police and prosecutors are much more likely to charge the person with murder, not terrorism offences. That is the reason why Justin Bourque, Richard Bains and most recently Alexandre Bissonette (at least so far) were not charged with terrorism offences.

Not a single person currently in prison in Canada for a terrorism offence enacted after 9/11 has actually committed an act of violence. They were pre-empted. And so as pre-empted plotters, they now face the risk of revocation, assuming they are dual nationals. Killers would not.

Four, revocation would consume huge resources, best deployed for different objectives. Setting aside the inevitable constitutional challenges to revocation itself, subsequent efforts to remove these former Canadians would be an arduous undertaking. The risk of maltreatment in foreign countries may be high, placing Canada in the invidious position of trying to remove people to torture.

We have been down this path before, with immigration security certificates. At the end of the last decade, the government was spending multiple millions of dollars per year per security certificate, often in a vain attempt to defend the measures. This was not money well spent.

Indeed, more money by a large margin was spent trying to remove people, than Canada has spent in total so far on counter-violent extremism and terrorist disengagement strategies. While these programs are themselves unproven and untested, they are an area in which Canada clearly needs to improve its practices. At the end of the day, even for terrorist convicts, rehabilitation, not displacement to other countries, is the most plausible security strategy.

That is because, fifth, displaced dangerous people remain dangerous – and indeed potentially more dangerous than if they remained in Canada. They will likely be impossible for Canadian security services to monitor, they may be free of strictures such as peace bonds, and history suggests that dangerous people outside of Canada can continue to do harm to Canadians and Canadian interests.

Nor, sixth, would other countries readily welcome the arrival of a person radicalized to violence in Canada – and almost all of those serving terrorism sentences are made-in-Canada terrorists.

Canada’s international anti-terrorism objectives are poorly served if we become an exporter of instability, rather than invest in the hard work of terrorist disengagement.

In sum, it is my view that little recommends terrorism citizenship stripping, and there much that condemns it.